Collateral Effects of Secretary Clinton’s Nonofficial Email

On March 2, the New York Times reported that Hillary Clinton exclusively used a nongovernment email account during her tenure as Secretary of State. Last December, following a request from the State Department, her lawyers conducted a review and turned over some 55,000 pages of email they deemed to have been related to her official duties. The disclosure of her email practices sparked criticism and allegations of cover-up. Last week the former Secretary held a press conference seeking to resolve outstanding questions.

Process stories, even messy ones, rarely derail significant political figures without some devastating substantive disclosure. Investigations require fuel to maintain political salience. Unless there are bombshells to come, I doubt this imbroglio will have a material effect on the 2016 race.

However, it will breathe new life into stale FOIA litigation, prompt allegations of obstruction, and generate new congressional investigations and civil litigation. When the subject of an email controversy is a major public official or potential candidate for office, the interests of partisan opponents, transparency advocates, and journalists often align to create a political firestorm.

Here the controversy begins with federal records retention obligations. Washington has had a crash course on the Federal Records Act (FRA) over these weeks. The FRA, like the Presidential Records Act (PRA), was originally enacted to ensure adequate record keeping for ongoing government operations and to preserve an accurate historical record. However, during the Clinton administration, the PRA and FRA became a means of gathering evidence for political attacks through subpoenas. In the present controversy, James Carville speculated that Secretary Clinton “didn’t want [Republican Congressman] Louis Gohmert rifling through her emails.”

Because allegations about email record retention problems may implicate discovery obligations and subpoena compliance, they can have collateral effects on litigation and investigative matters.

Historical Context: The Clinton and Bush Administrations

My early legal experience in the Clinton White House provides a vivid illustration of the potential collateral effects of problems with PRA or FRA email preservation.

I served as Assistant Counsel to Vice President Al Gore during the final year of President Clinton’s second term and then became General Counsel to the Gore Transition Office for the first six months of President George W. Bush’s administration.

My primary responsibility was conducting a massive document review that covered all of the various investigations and legal controversies of the entire Clinton years, including Whitewater, the White House Travel Office firings, Democratic National Committee fundraising practices, Monica Lewinsky, and Vince Foster’s suicide. These controversies returned to the political stage after disclosures of several White House email management problems in litigation initiated by the conservative legal organization Judicial Watch. In addition, these disclosures prompted familiar allegations of a “cover up” and “obstruction of justice.”

The document review focused on a database of emails that had been reconstructed from backup tapes as part of the Tape Restoration Project (TRP). The TRP database included: (1) emails from a White House server that had stopped populating a searchable archive known as the Automated Records Management System (ARMS), (2) emails that began with the letter “D,” which were not populating the ARMS database due to a programming error, and (3) emails from the Office of the Vice President, which for its own unique reasons had failed to populate the ARMS system during several periods. As such, the email issues had potential ramifications for the White House’s preexisting discovery and subpoena compliance obligations.

For months, I had a unique work routine. First, I would check in with my supervisors in the Office of the Vice President and White House Counsel’s Office. Then, a colleague and I would report to a nondescript Justice Department (DOJ) building on New York Avenue to review documents in a windowless room with two computer terminals, two FBI agents, and two federal prosecutors. One prosecutor represented the DOJ Campaign Financing Task Force. The other represented the Office of the Independent Counsel, which by that time had transitioned from Ken Starr to Robert Ray.

Only the FBI agents were allowed to touch the keyboard. The lawyers would discuss the potential responsiveness of the document on the screen to any one of the some 1,000 grand jury subpoenas, congressional subpoenas, or court-ordered discovery obligations that we had, for ease of reference, in 13 three-ring binders. If the prosecutor believed a document on the screen was responsive, it would be printed. Each night, we would return to the White House with any documents printed out for privilege review.

In an appended response to a Government Accountability Office (GAO) report, I argued there was no evidence to suggest deliberate attempts by White House staff to frustrate judicial or congressional processes. Ray’s final report, which most notably declined to seek criminal charges against President Clinton, also concluded “there was no substantial evidentiary basis to support criminal charges against any persons involved in the White House’s failure to produce electronically maintained documents in response to grand jury subpoenas issued during the course of this Office’s various investigations.”

In that spartan room, we oversaw the death rattle of many of the politically charged investigations of the Clinton administration.

For its part, the Bush administration had an email records management controversy of its own erupt in 2007 when it became clear that 51 White House officials had extensively used email accounts administered by the Republican National Committee. According to Rep. Henry Waxman (D-Calif.), then-chairman of the House Committee on Oversight and Government Reform (HOGR), many of those emails constituted official business that was covered by PRA preservation obligations, and the RNC had destroyed many of them. (I served on HOGR Democratic staff at that time, although I was not assigned to that matter.)

These are cautionary tales.

Emerging Collateral Litigation Effects

An email records controversy like the current one generates new requests under the Freedom of Information Act (FOIA). It also incentivizes existing requesters to press their FOIA claims, even if the matter was previously closed. There are already at least five litigation matters that have been affected by these developments.

Judicial Watch v. Department of State (No. 1:13-cv-01363) (D.D.C.)

In light of the disclosures about Sec. Clinton’s nongovernment email account, this week Judicial Watch moved to reopen its FOIA lawsuit focused on Sec. Clinton’s then-aide Huma Abedin. The case had previously been disposed of by a stipulation of dismissal. The State Department has indicated it will not resist resurrecting the case.

In another FOIA matter — this one seeking documents about waivers for Iran sanctions — Judicial Watch’s estranged founder Larry Klayman filed a motion with the D.C. Circuit to remand the case pending appeal to the District Court so the lower court could consider contempt sanctions against Sec. Clinton. The D.C. Circuit denied the motion without comment, but appellate argument is scheduled for April 2, and Klayman has indicated the email disclosures will be central to his presentation.

Citizens United v. Department of State (No. 1:14-cv-02076) (D.D.C.)

On Friday, Judge Gladys Kessler ruled that the State Department must produce passenger manifests from Sec. Clinton’s 47 overseas trips for the conservative legal group Citizens United. The New York Times quotes Citizens United president David Bossie’s assessment of the deteriorating atmospherics: “Clearly, the State Department is not getting the benefit of the doubt from judges anymore.”

Associated Press v. Department of State (No. 1:15-cv-00345) (D.D.C.)

Not all of the litigation fallout comes from conservative outfits. Last week, the Associated Press filed suit against the State Department for failure to respond to pending FOIA requests in a bid to force more comprehensive and quicker release of Secretary Clinton’s emails.

Gawker Media v. State Department (No. 15-cv-00363) (D.D.C.)

On March 13, Gawker Media also filed a FOIA lawsuit against the State Department in which it alleges that the State Department failed to provide emails responsive its 2012 request seeking communications between former Deputy Assistant Secretary of State Philippe Reines and reporters from 34 news outlets. Ironically, the FOIA request was designed to further Gawker’s 2013 report that Sec. Clinton was using a nongovernment email account to communicate with her former aide Sidney Blumenthal, in which Gawker raised questions of FRA compliance.

Emerging Collateral Congressional Investigation Effects

No one is surprised that congressional Republicans have political incentives to apply investigative pressure to Sec. Clinton in advance of the 2016 presidential cycle. In what Politicotermed a “feeding frenzy,” three House committees are conducting investigations touching on Sec. Clinton’s email practices.

First, the committee that broke this story, the House Select Committee on the Benghazi Attacks, chaired by Rep. Trey Gowdy (R-SC), will receive the first tranche of documents from Sec. Clinton’s nongovernment email account — some 900 pages are reportedly responsive to the Benghazi inquiry. I would hazard to guess that the vast majority of these messages have already been reviewed by the committee as emails either sent or received by State Department subordinates using their official email accounts.

Second, HOGR, chaired by Rep. Jason Chaffetz (R-Utah), will investigate the State Department’s — and Sec. Clinton’s — email practices. HOGR has legislative jurisdiction over the PRA and FRA, and it is traditionally the epicenter of congressional investigative activity related to email management controversies. Past chairmen Reps. Dan Burton (R-Ind.) and Waxman investigated the email practices of the Bill Clinton and George W. Bush administrations, respectively. Chairman Chaffetz notes: “The House Oversight Committee has a long history of investigating violations of the Federal Records Act and we will continue looking into this matter to ensure that all records were properly preserved in accordance with the law.”

Third, the House Committee on Foreign Affairs (HFAC) chaired by Rep. Ed Royce (R-Calif.), has also expressed interest in conducting a related investigation. It remains to be seen whether HFAC will actually conduct a robust factual investigation, which has not been its practice in recent history.

The substance of email content, not the process of email use and preservation, will determine whether this controversy meaningfully alters the 2016 politics. For the time being, however, the atmosphere has deteriorated for the State Department in the courts and before Congress. And leverage grounded in the political context is often the touchstone in interbranch information access disputes.